Flato v. Mulhall

• Decision Date: 20 November 1877
• Parties: F. W. FLATO, JR., Plaintiff in Error, v. JOSEPH MULHALL ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

4 Mo.App. 476

F. W. FLATO, JR., Plaintiff in Error,

v.JOSEPH MULHALL ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Nov. 20, 1877.

A parol promise to accept a future bill of exchange, in consideration of money to be advanced thereon by the promisee, is invalid, and an action thereon cannot be maintained against the promisor.

ERROR to St. Louis Circuit Court.

Affirmed.

FARISH & GRIFFIN, for plaintiff in error, cited: Scudder v. Union National Bank, 2 Cent. L. J. 829; Townsley v. Sumrall, 2 Pet. 176; Boyce v. Edwards, 4 Pet. 111.

H. B. O'REILLY, for defendants in error, cited: Wag. Stat. 1012, sec. 2.

LEWIS, P. J., delivered the opinion of the court.

The petition charges that defendant Mulhall, as a partner in the firm of Mulhall & Scaling, promised the plaintiff, orally, that if he would advance money on any drafts to be drawn by Beauchamp & Alexander on said firm, such drafts would be duly honored and paid; that afterwards two such drafts were drawn, one for $1,515 and the other for $1,010, upon both of which plaintiff, in exact accordance with the promise and direction of defendant Mulhall, as stated, advanced the several sums therein mentioned; but that defendants, Mulhall & Scaling, refused to accept said drafts, and the same remain unpaid.

The cause was tried before the court, sitting as a jury. The testimony was conflicting as to whether any such promise as that declared upon was ever made. The plaintiff offered a number of instructions, to the general effect that if the allegations in the petition were sustained the plaintiff should recover. These the court refused, and judgment was rendered for defendants.

The only question to be here determined is whether, upon a parol promise to accept a future bill of exchange, in consideration of money to be advanced thereon by the promisoe, an action can be sustained in Missouri. Our statute declares as follows (Wag. Stat. 214):

“Sec. 1. No person within this State shall be charged as an acceptor of a bill of exchange unless his acceptance shall be in writing, signed by himself or his lawful agent.”

“Sec. 3. An unconditional promise in writing, to accept a bill, before it is drawn, shall be deemed an actual acceptance in favor of every person to whom such written promise shall have been shown, and who, upon the faith thereof, shall have received the bill for a valuable consideration.”

It is contended for the plaintiff that, while under the statute an actual parol acceptance, whether upon valuable consideration or otherwise, is invalid, yet a parol promise to accept, if supported by a consideration, may be enforced as a common-law obligation. Thus, the promise to assume an undertaking is made more effectual than the undertaking itself. The statement of the proposition seems to furnish its own refutation. Our legislative wisdom has required an enduring form of evidence to establish the liability of...